Ontario’s Employee Electronic Monitoring Policy: October 11 Deadline Approaching

Earlier this year, we reported that Bill 88, Working for Workers Act, 2022, was introduced into the Ontario legislature. The bill would amend the Ontario Employment Standards Act, 2000 (ESA) to require employers with 25 or more employees to have a written policy on the electronic monitoring of employees (Policy). Bill 88 has since passed, and the amendments related to the Policy requirements are now in force.

This bulletin sets out key takeaways for employers related to this new requirement.

WHO IS REQUIRED TO HAVE THE POLICY?

Employers in Ontario with 25 or more employees are required to have a Policy.

WHEN MUST THE POLICY BE INSTITUTED?

For the year 2022, employers in Ontario with 25 or more employees as of January 1, 2022, must have the Policy in place by October 11, 2022. By November 10, 2022, employers must provide employees with a written copy of the policy.

From 2023 onwards, employers in Ontario with 25 or more employees as of January 1 of each year must have the Policy in place by March 1 of that year.

HOW SHOULD “25 OR MORE EMPLOYEES” BE DETERMINED?

Every employee in Ontario must be included in the count when determining if an employer employs 25 or more workers. This includes, but is not limited to, part-time employees and employees who are on layoff or leave of absence. Employers with multiple locations in Ontario must include the employees in every location towards their total employee count.
Employees who work remotely outside of Ontario for an Ontario-based employer would not need to be included in the employee count.

WHAT SHOULD BE INCLUDED IN THE POLICY?

Employers must include the following minimum criteria in the Policy:

1. If employees are electronically monitored. If an employer does not electronically monitor its employees, the Policy must also explicitly confirm this.

2. The methods used to electronically monitor employees. Electronic monitoring includes all forms of employee monitoring that is carried out electronically. For example, an employer could state that it monitors its employees’ internet activity on company computers or tracks an employee’s location through their company key card.

3. The circumstances in which employees’ activities are electronically monitored. For example, an employer that electronically monitors its employees’ website traffic could state in the Policy that it may monitor an employee’s internet activity at any time.

4. How information collected through electronic monitoring will be used. For example, an employer that monitors its employees’ website activity could state in the Policy that it monitors this activity to ensure its employees are working efficiently or ensure they are using their work equipment appropriately. According to the ESA, the Policy requirements do not affect or limit an employer’s ability to use information obtained through electronic monitoring of its employees.

5. The date the Policy was prepared and any changes were made. These dates must be clearly set out in the Policy.

RECORD RETENTION REQUIREMENTS AND DISCLOSURE OBLIGATIONS

Employers must retain a copy of the Policy for at least three years after it is no longer in effect.
Employers must distribute a written copy of the Policy to its employees within 30 calendar days of (1) the date the Policy is required to be in place, or (2) the date the Policy is changed.

Employers must also provide a written copy of the Policy to new employees within 30 calendar days of the day the individual becomes an employee.

KEY DEADLINES

• By October 11, 2022, employers with 25 or more employees in Ontario as of January 1, 2022, must ensure their workplace has the Policy in place containing the required criteria, as set out above.

• By November 10, 2022, employers must provide employees with a written copy of the Policy.

• Beginning in 2023, every January 1, employers should evaluate the number of workers they employ in Ontario to determine if they need to institute the Policy. If an employer determines they must institute the Policy and did not previously fall under such requirement, they must provide a written copy of the Policy to their employees by March 1 of that year.

For more information, please contact any member of our Employment & Labour group.